| Jones v American Commerce Ins. Co. |
| 2012 NY Slip Op 01435 [92 AD3d 844] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Dylan Jones, Respondent, v American CommerceInsurance Company, Appellant. |
—[*1] Arnold I. Bernstein, White Plains, N.Y., for respondent.
In an action to recover uninsured motorist benefits under an insurance policy, the defendantappeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), enteredSeptember 22, 2011, which granted the plaintiff's motion for summary judgment on the issue ofliability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied, with leave to renew after the completion ofdiscovery.
The plaintiff allegedly sustained serious injuries after his motorcycle, which he was operatingon eastbound Pound Ridge Road at or near its intersection with Pine Brook Road in the Town ofBedford, was struck by an uninsured vehicle operated by nonparty Allby Morales. At the time ofthe accident, the plaintiff's insurance policy with the defendant provided, inter alia,uninsured/underinsured motorist coverage and allowed the plaintiff to pursue a claim for painand suffering against the defendant up to the stated policy limits. In January 2011, the plaintiffcommenced this action against the defendant to recover uninsured motorist benefits and issuewas joined in March 2011. By service of a notice of motion dated May 25, 2011, prior to anydiscovery being conducted, the plaintiff moved for summary judgment on the issue of liability.The Supreme Court granted the motion. The defendant appeals and we reverse.
CPLR 3212 (f) provides, in relevant part, that a court may deny a motion for summaryjudgment "[s]hould it appear from affidavits submitted in opposition to the motion that factsessential to justify opposition may exist but cannot then be stated" (CPLR 3212 [f]; see James v Aircraft Serv. Intl. Group,84 AD3d 1026, 1027 [2011]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636,637 [2006]). " 'This is especially so where the opposing party has not had a reasonableopportunity for disclosure prior to the making of the motion' " (James v Aircraft Serv. Intl.Group, 84 AD3d at 1027, quoting Baron v Incorporated Vil. of Freeport, 143 AD2d792, 793 [1988]; see Dietrich vGrandsire, 83 AD3d 994 [2011]). Here, the plaintiff moved for summary judgment onthe issue of liability prior to the exchange of any discovery. Since the defendant had no personalknowledge of [*2]the relevant facts (cf. Deleg v Vinci, 82 AD3d 1146[2011]), it should be afforded the opportunity to conduct discovery, including depositions of theplaintiff, the operator of the uninsured vehicle, and an eyewitness identified in the police accidentreport (see Gardner v Cason, Inc.,82 AD3d 930, 931 [2011]).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summaryjudgment on the issue of liability, with leave to renew upon the completion of discovery (seeDietrich v Grandsire, 83 AD3d at 994; Gardner v Cason, Inc., 82 AD3d at 931; cf. Gruenfeld v City of New Rochelle,72 AD3d 1025, 1026 [2010]).
The plaintiff's remaining contentions are rendered academic by our determination. Dillon,J.P., Florio, Chambers and Lott, JJ., concur.